Comparison of Leave Rights under Federal and State Laws

Popular name of law FMLA

Family Medical Leave Act

Sick Leave Law

None

ADA

Americans with Disabilities Act

CDL

California Disability Law

 

PDLL

Pregnancy Disability Leave Law

Pregnancy

Pregnancy Discrimination Law

WCAB

Worker's Compensation

Where to find Law FMLA: 29 U.S.C. 2601-2654

CFRA: California Government Code 12945.1- 12945.2

California Labor Code 233 42 U.S.C. 12101-12213 California Government Code 12926, 12940 California Government Code 12945 California Government Code 12945 California Labor Code 132(a),3200-6149
Basic Purpose Family and Medical leave rights for employee or for care of parent, spouse or child Use of employer provided sick leave benefits for care of parent, spouse, child or domestic partner "Reasonable accommodation" (i.e., affirmative action) and non-discrimination for physically and mentally disabled employees

 

Same as ADA, but greater protections Reasonable accommodation  and non-discrimination for temporarily, physically-disabled pregnant employees Reasonable accommodation  and non-discrimination for non-disabled pregnant employees Benefits for employees who are temporarily or permanently disabled because of work related injuries or illness
Number of Employees 50 or more All 15 or more 5 or more 5 or more 5 or more All
Eligibility Rules 12 or more months of service for employer (need not be consecutive)

Employed more than 1250 hours in 12 months preceding leave

At facility with 50 or more employees within 75 miles

To be eligible the employer must already provide paid sick leave None None None None None
Right to a Leave? Yes, by statute No Yes, by regulation Yes, by regulation Yes, by statute By statute, but only if provided to other temporarily disabled employees Yes, by statute
Pay Status during Leave Unpaid, except employee may use certain paid time Paid (sick leave is defined as "accrued" increments of compensated leave) Unpaid, but may not discriminate Unpaid, but may not discriminate Unpaid, but may not discriminate. If employer has 15 or more employees and pays for other temporary disability leaves, employer is only required to pay 6 weeks of accrued, paid leave regardless of policy Unpaid, but may not discriminate between pregnancy and other temporary disabilities Unpaid, but may not discriminate between work-related and other leaves
Mandatory Use of Vacation or Sick Pay? Employer may require (or employee decide) to use vacation pay, or paid sick time (even if leave is for care of relative) Sick Pay Employer may require (or employee decide) to use vacation pay, or paid sick time Employer may require (or employee decide) to use vacation pay, or paid sick time Employer can mandate only use of paid sick time, not vacation or other paid time off Employer can mandate only use of paid sick time, not vacation or other paid time off No
Maximum Length of Leave 12 workweeks per leave year Allows employee to use maximum sick leave earned in 6 months of every calendar year to care for sick child, parent or spouse Indeterminate; not limited to 12 weeks Indeterminate; not limited to 12 weeks 4 months per pregnancy Partial days' absences; additional leave if permitted for other temporarily disabled employees Indeterminate
Intermittent Leave or Reduced Schedule Required? Yes, by statute Per employer sick leave policy Yes, part-time and modified work schedules are reasonable accommodations, although case law recognizes that regular attendance may be an essential job function Yes, part-time and modified work schedules are reasonable accommodations, although case law recognizes that regular attendance may be an essential job function Yes, by regulation Yes, partial days' absences Yes, by implication, but subject to business realities defense
Mandated Group Insurance Coverage Yes, by statute health insurance must be continued on same basis as active employees. (Under CFRA only required for 12 workweeks even if more time is available); other coverages need not be maintained (except may not but must be reinstated at end of leave No No, but may not discriminate No, but may not discriminate No, but may not discriminate No, but may not discriminate No, but may not discriminate
Obligation to Provide Light Duty No, and if it is provided, employer cannot force employee to take light duty if employee qualifies for FMLA leave No Yes, if employee can still perform essential job functions. transfer to a different vacant job may be required "reasonable accommodation" Yes, if employee can still perform essential job functions. transfer to a different vacant job may be required "reasonable accommodation" Yes, unless employer can prove that light duty or transfer cannot be reasonably accommodated Yes, unless employer can prove that light duty or transfer cannot be reasonably accommodated Yes, unless justified by business realities
Reinstatement Right to Old Job Yes, by statute

 

Defenses:

1) Would have lost job if not on leave

2)Key employee

Not applicable Yes, by implication, if leave mandated as reasonable accomidation

 

Defense:

Undue hardship would result

Yes, by implication, if leave mandated as reasonable accomidation

 

Defense:

Undue hardship would result

 

Yes, by regulation to original job

Defenses:

1) Would have lost job if not on leave

2) Each means of preserving job would undermine employer's ability to operate safely and efficiently

If so, must reinstate to comparable job (a job is "available" if open on scheduled date of reinstatement or within 10 days thereafter)

Yes, by regulation to original job

Defenses:

1) Would have lost job if not on leave

2) Each means of preserving job would undermine employer's ability to operate safely and efficiently

If so, must reinstate to comparable job (a job is "available" if open on scheduled date of reinstatement or within 10 days thereafter)

 

Yes, by case law

Defenses:

1) Employer reasonably believes employee can't perform job without undue risk or reinjury

2) If replacement was necessary due to business realities

3) If employer reasonably believes employee is permanently disabled

Can Medical Certification Be Required Yes If required by sick leave policy Yes Yes Yes Yes Yes
Second/Third Medical Opinion FMLA: Yes, but not by doctor regularly used by employer

CFRA; only for employee, not for spouse, parent, or child

If required by sick leave policy Yes Yes Not permitted Not permitted Yes, for underlying injury only

Chart Provide by:     Joseph L Paller Jr. Esq.